In this action, plaintiff, Nolan O'Conner (O'Conner), a junior high school student, by his mother, brings suit against the City of New York and the New York City Department of Education ( collectively the City) as well as O'Connor's math teacher Yelena Koltunova (Kotlunova) for injuries allegedly sustained when O' Connor picked up a curling iron that had been brought to school by Koltunova.

Plaintiffs now move for partial summary judgment on liability based on a) common law negligence, b) the "introduction into the classroom of a dangerous instrument and subsequent failure of securing same," c) defendants violation of statute which constitutes negligent per se, and d) "upon the theory of res ipsa loquitur."

The deposition testimony of O'Connor established that with the permission of Koltunova, O'Connor went to the front of the classroom to sharpen his pencil using an electric pencil sharpener, that the sharpener did not work, and as O'Conner testified "he knocked over the curling iron with my leg and I picked it up with my hand and I got burned"

Plaintiffs essentially argue that these facts alone establish their entitlement to partial summary judgment as Koltunova should not have brought an inherently dangerous instrument into the classroom which was not properly safeguarded.

Generally in negligence cases, motions for summary judgment are not favored as most cases involve factual issues that must, of necessity, be resolved by a jury ( Elzer v Nassau County, 111 AD2d

212 [2d Dept 1985).Plaintiffs argue that this case is an exception to that general rule as the curling iron is so inherently dangerous that there are no fact issues to be resolved.The curling iron when used for its normal purpose is not dangerous. Whether an object qualifies as a [*2]dangerous instrument depends on the nature of the instrument and facts pertaining to its use. (Rios v Smith, 95 NY2d 647 [2001]).

A curling iron is not an inherently dangerous instrument that gives rise to strict liability by its owner. There are issues of fact for a jury to consider as to whether Koltunova took steps to safeguard the students . She testified as follows:

Q. Do you recall removing the curling iron's plug from the wall

outlet at any point in time on February 16, 2005?

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A. I would have to, because the cord is not that long for me to

go to the mirror. It's- the cord is about this size and for me

to go from the outlet to the place where I was curling it, to my

closet, I have to make ten steps or something (indicating) . It's

almost on the opposite side of the room.

*****************

Q. Did you ever plug the curling iron in after the first time that you

plugged it in on February 16, 2005?

A. Not that I would remember.

Q. Is there a possibility that you plugged it in between first period

and some other point in time?

A. There was no need for that; but to say 100

percent that I didn't, you know,— to what I remember, I didn't

That's the best I can tell you.

Plaintiffs discount Koltunova's testimony. However, this testimony raises issues for a jury to consider whether they believe Koltunova, whether she exercised care in unplugging the curling iron

and securing it, whether someone else plugged it in and whether O'Conner contributed to the accident. These are jury issues as the Court finds that the very act of bringing a curling iron into the classroom does not constitute negligence per se by defendants as no statute prescribing such conduct has been demonstrated to exist.

Moreover, plaintiffs' reliance on the doctrine of res ipsa loquitur is misplaced. The doctrine applies where the actual or specific cause of the accident is unknown (Kambat v St. Francis Hospital, 89 NY2d 484 [1997].) In addition, plaintiff failed to meet the three elements which must be established to have the doctrine apply. As the Court noted in Kambat :

First , the event must be of a kind that ordinarily

does not occur in the absence of someone's negligence; [*3]

second, it must be caused by an agency or instrumentality

within the exclusive control of the defendant; and third,

it must not have been due to any voluntary action or

contribution on the part of the plaintiff( Ebanks v New

York City Tr. Auth., 70 ny2d 621 623).

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Plaintiffs here cannot establish these elements. The curling iron was not in the exclusive control of the defendants, another person may have plugged it in. O'Conner voluntarily picked up the curling iron so a jury may conclude that his actions contributed to the accident.

Accordingly, plaintiffs' motion for partial summary judgment is denied.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

May 14, 2008

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